Ginbey v Minister for Education - [2010] WADC 110

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: GINBEY -v- MINISTER FOR EDUCATION [2010] WADC 110

CORAM: KEEN DCJ

HEARD: 19, 20, 21, 22, 23, 27 APRIL 2010

DELIVERED : 30 JULY 2010

FILE NO/S: CIV 221 of 2007

BETWEEN: MARIE-AIMEE GINBEY
Plaintiff
AND
MINISTER FOR EDUCATION
Defendant

Catchwords:

Negligence - Employer's liability - Turns on own facts

Legislation:

Nil

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff: Mr D M Bruns
Defendant: Mr D R Clyne

Solicitors:

Plaintiff: Separovic & Associates
Defendant: WHL Legal Pty Ltd

Case(s) referred to in judgment(s):

Fox v Wood (1981) 148 CLR 438
Kerr v Minister for Health [2009] WASCA 32
Ramsay v Watson (1961) 108 CLR 642

KEEN DCJ: In March 2001 Ms Ginbey was employed by the Education Department (Department) as a teacher's assistant at Mount Hawthorn Education Centre (Centre).
The Centre is a school that caters for children between the ages of 5 and 13 who have problems. One such child was a girl, then aged 9½ years who was described as a low‑level functioning child with autism and with high support needs. For the purposes of these reasons and to preserve her anonymity I shall refer to this child by an assumed name of Jane.
On 1 March 2001 after the lunchbreak Jane was distressed. Ms Ginbey took her to the shower room to cool her down. Whilst she was getting clothes for Jane, Jane left the shower cubicle and went though the door into an open area. Ms Ginbey heard the door to the shower room close and followed Jane and saw her heading towards another door to the external school area (shown on a plan of the area, Exhibit 3). Exactly what occurred is the subject of evidence but it is alleged in the statement of claim that Jane ran naked to the door (of the shower room) and went into the common area and as Ms Ginbey tried to grasp her with her right hand, Jane pulled away causing Ms Ginbey to slip on the wet floor at the area between the bathroom door and the external door of the Centre and suffer injury. Ms Ginbey says that she slipped on the wet floor, caused by the trail of water from Jane, and landed on her bottom after which she had pain in her back and right leg.
After a period at other schools, Ms Ginbey ceased work in about October 2005.
She has undergone various treatments for her condition including a spinal fusion on 16 June 2006.
Ms Ginbey says that the accident was caused by the breach by the Department of her contract of employment and of the duty to take reasonable precautions for her safety. It is alleged in the statement of claim and particulars that the Department knew that Jane was a strong and aggressive student who had a high propensity to run outside or escape from given boundaries and who needed a high level of supervision beyond the capacity of the Centre being "one‑to‑one assistance for the whole period at school, with two staff available for functions such as showering". It is also alleged that there were no locked doors between the shower and the external area of the Centre leading to the road.
The breach alleged is:
(a)Failing to transfer Jane to a school where more intensive supervision was available.
(b)Failing to have two teacher's assistants available to shower Jane.
(c)Requiring Ms Ginbey to shower Jane in order to calm her when showering had the opposite effect and other, less hazardous methods of dealing with Jane were available, such as placing her in a beanbag.
(d)Requiring Ms Ginbey to shower Jane alone.
(e)Failing to ensure that the bathroom door and the external door of the Centre were lockable and locked to avert the possibility of Jane running out of the bathroom and/or out of the Centre.

Issues arising

A number of issues arise out of those simple facts and include:
1.As to liability:
(a)What were the circumstances of the accident.
(b)Whether the Department was in breach as alleged including a consideration of the assessments of Jane and whether Ms Ginbey was contributory negligent (a plea of voluntary assumption of risk having fallen away).
2.As to quantum:
(a)What injury Ms Ginbey suffered.
(b)What treatment she received for the injury.
(c)What were the effects of the injury.
(d)Whether she had a pre-existing condition and its effect.
(e)What continuing disabilities Ms Ginbey suffers and their cause.
(f)Whether and what treatment she received was caused by her injury on 1 March 2001.
(g)What loss and damage she has suffered as a result of her fall.

Ms Ginbey's background

Ms Ginbey was born on 12 September 1957 in the Seychelles where she trained and worked as a dental nurse until she left to come to Australia in 1976 where she did some volunteer or relief work in schools and also a university course at Notre Dame to enable her to assist in a classroom with special needs children. As part of her "prac" for that course she went to the Centre where she was offered and accepted a position as a teacher's assistant.
Ms Ginbey has five children; Tessa Esparon aged 33 and Daryl Esparon aged 32, from a marriage in 1976; and Melanie aged 24, Nathan aged 16 and Sophie aged 13, from a marriage in 1990 to Mr Gibney.

Credibility

In this matter the plaintiff's credibility came under scrutiny both as to the circumstances of the accident and the injury and disabilities that she suffered as a result and those that she now claims to suffer. Accordingly, it is necessary to have this in mind when considering each of the issues that arise.

The Centre and problems with Jane

Ms Ginbey gave evidence that the Centre catered for children with problems.
She said that her daily duties comprised meeting children from the bus and then placing them in class. There would be a teacher in the class and Ms Ginbey would share the load of toileting, showering some of the children and giving them breakfast. She would also look after some other child or children when the teacher would take other children out for exercise and she would manage those children. She would also sit with those children in the classroom.
She said that in the morning there would be another assistant at the Centre, but in the afternoon she was alone with the teacher and the children.
She said that she worked according to the teacher's instructions.
She said that some of the children could be difficult and gave examples of children pushing tables into her or running away. Maria Uchanski, an occupational consultant for students with disabilities, gave evidence of recalling one incident where Jane took the flyscreen of a window apart and went out of the window and ran down an incline towards Scarborough Beach Road.
Ms Ginbey said that when she toileted these children she did not have assistance and no-one suggested that she could ask for help.
She described Jane as being tall for her age and very strong. She said that Jane was about 40 kilograms and she herself was about 54 kilograms.
Ms Ginbey said that Jane was constantly running and jumping on other children to take food. She was prone to run away and to pull her clothes off.
Patricia Hall, a retired educational assistant who had worked part‑time at the centre also described Jane as being a large girl who was very strong but not violent. She said she cried and screamed a lot and banged her head and would push and run but she did not describe her as a runner. She would "flit to the wall and back" but not run away.
Maureen Seal, a teacher's assistant at the Centre, also worked with Jane and described her as difficult. She said that she would self-mutilate and also said that she would take flight across the room. She described her as a big, solid girl who was stubborn.
Ms Pauline Egan, a teacher at the Centre with whom Ms Ginbey worked, noted that Jane could become distressed by heat. She had to wear a helmet because of her head banging and also extra underwear because of her incontinence. It was hot in the classroom and Jane would get sweaty and uncomfortable.

The incident on 1 March 2001

Ms Ginbey said that on 1 March 2001 at the conclusion of the lunchbreak Jane was screaming. She said that Ms Egan asked her to give Jane a wash to cool her down. Ms Egan then returned to the classroom and Ms Ginbey took Jane to the shower.
Ms Egan in her evidence said that she was teaching in the classroom. Ms Ginbey was there and Ms Ginbey signalled to Ms Egan that she was going to take Jane to the toilet. She said that she did not know that Ms Ginbey was going to shower Jane. This was done on an as needs basis if children soiled themselves. She said that she did not tell the plaintiff to shower Jane or to shower her to calm her down.
Ms Ginbey said that she took Jane to the shower room. She described the shower room as having a door which opens outwards into the dining area. The shower cubicle was next to the door and there were basins and toilets on the opposite side of the door.
She said that she undid Jane's nappy and sat her on the toilet. She then removed her shoes and socks and her clothes. Jane was screaming and yelling. She opened the shower door and turned the shower on and then put Jane into the shower.
Ms Ginbey then turned around to get some clothes for Jane. She then heard the door bang shut. There was no lock on the door. She turned around. She said that she opened the door and saw Jane going on tip‑toe towards the outside door as shown on Exhibit 3.
Ms Ginbey said that the distance between the bathroom and the outside door was 3 to 4 metres. Her evidence is then:
"So you opened the door and you saw her, you say, running towards that door? – Yeah.
What – what did you do next? – And I – I went to grab her. I ran after her. I went to grab her – I'm not too sure whether I got her and she pulled her arm away and then – that's when I slip – I slipped and fell. And I scream, which is – that's what we do with them, when they run out the door, which there are – a lot of children runs we – I scream 'Jane, stop' and she – she just froze …"
She described her slip as being that her legs went out from under her. Her right leg went out in front and her bottom hit the ground.
When questioned, in cross-examination about the history obtained by Dr Joel Silbert (Exhibit 10) that Ms Ginbey "recalls slipping and falling whilst attempting to negotiate the child while undertaking a shower", Ms Ginbey said that Jane:
"… went out of the shower. Pulled the door. Went out of the shower. When I heard the door shut and I went after her and I fell."
The following passage of evidence occurred in cross-examination:
"So the fact that Jane was a strong girl or a big girl had nothing to do with your accident? – Strong girl.
Well, she didn't push or pull you, did she? – I went to grab her.
She didn't? – I went to grab her and she pulled away.
Well, did she pull away? – Well, I can't remember exactly, but I went to grab her and she pulled away.
Did you touch her? – I don't remember. I've got – I've got a rough idea that I did but I can't remember exactly. It's quite a long time ago.
… On this day when she attempted, you say, to go out the door? – Yeah.
And in fact went some steps out the door? – Yeah.
You tried to reach out for her, you say? – And she pulled away.
But you didn't touch her, to your knowledge? – I don't remember. Yeah, I don't remember now exactly.
So what? – But she did pull away, I went to grab her and she pulled away."
This cross-examination was punctuated with questions about what difference the strength of Jane made and continued:
"But what difference does it make if she pulled her arm back whether she was strong or weak or how big she was? – It's – it was her – she was extremely strong.
She may have been? – Yeah.
But it made no difference to how you slipped? – Well, I went to go after her because that was the door that was going outside.
Yes, yes, you went to go after her? – Outside.
Yes. You went to go after her and you slipped, so it didn't matter if she was 46 kilos or 26 kilos? – Well, I did – but I still fell.
Yes? – Because I was looking after her.
I accept that you say you fell. What I'm putting to you is it doesn't matter what size she was. It had nothing to do with how … what caused you to fall? – Well – well, I don't remember whether I got her or not, but she pulled away. But – and – but she stopped anyway when I screamed."
In her accident report (Exhibit 15) the plaintiff described the accident as "slipped on wet floor while trying to stop a student from running from outside the toilet door out the door. Will not run after student again".

The plaintiff's injury

The plaintiff said that after she fell she felt pain in her back and right leg and in the buttock.
She said that she telephoned the doctor that day or the next morning but couldn't get an appointment. She thought that she saw a Dr Judelman and then saw Dr Shulman a few days later. She said that she did not think that her injury was severe. She said that Dr Shulman suggested physiotherapy and medication.
In the two years after her fall she had water therapy, physiotherapy, Pilates and injections to her spine. She saw Mr Paul Bannan, a neurosurgeon who performed a lumbar fusion in 2006.
Ms Ginbey said she did not seek medical treatment until 9 March 2001 because she said that she did not think that the injury was severe; she was in pain, but did not think she had suffered an injury in her fall.
It was put to her in cross-examination that she did not see a doctor in respect to this matter on a regular basis in 2001. She said that she did. She said that she saw a lady doctor at Ballajura and Illawara, but she could not remember the names. She said that that was paid for on a Health Care Card.
Dr Shulman noted in a report dated 29 August 2002 (Exhibit 26.2) that on 9 March 2001 Ms Ginbey described an injury when she slipped jarring her low back and right hip. On that date he noted that straight leg raising to left and right were equal, full and normal with some minor resistance to the right at the extreme point of full raising. There was a reduced range of medial rotation on the right hip joint. She was tender over the region of the right sacroiliac joint. There was no complaint of paresthesia, weakness or neuralgia down the legs. She was placed on anti-inflammatories and given a certificate as fit for work but with treatment.
Various medical practitioners who have seen Ms Ginbey over the years have, in their reports referred to a history of Ms Ginbey falling and having a history of back pain radiating to the right leg and buttock.

Treatment and subsequent incidents

I have described the initial treatment given by Dr Shulman, Ms Ginbey's general practitioner. After that Ms Ginbey said she saw a Dr Stynes on 12 March 2001. A series of workers' compensation notifications were put to Ms Ginbey, the first dated 16 March 2001, together with a first medical certificate. In that report she complained of teaching a student who became aggressive and uncontrollable and punching her to the right shoulder and slapping her across the neck. She said that this was some other student and not Jane. She agreed that she also had pain in her lower back and her first medical certificate refers to back pain and demonstrates the affected area as including the lower back. She described that lower back pain as a recurrence.
Ms Ginbey was then taken to another worker's compensation claim; a Recurrence of Disability form of 4 December 2001 in respect of a further incapacity arising on 8 November 2001. On this occasion she said that she had been hurt by another student whilst on an excursion to the zoo. She agreed that she had pain in the hip but not low back pain, but said that it depended upon what she did. She agreed that she did not mention shooting pain down her legs. It was put to her that that was because the pain had not started at that time and she said that she could not remember but had not described it on that occasion.
The next occurrence that she was taken to was one occurring on 22 February 2002. On the Recurrence of Disability form she referred to her disability as being hip sprains and strains of joints arising after an outing using public transport and handling students. She said that one student pushed into her and her hip starting aching. She described pain around the hip area.
She was next taken to a further Recurrence of Disability form in respect of an incident on 3 July 2002 in which she described that whilst working with students in class she had pain in the right hip. Treatment was said to have included injections into the hip joint. It was put to her in cross-examination that much of her problems was with the right hip. She responded that it was not, it was her back referring down to her hip and her leg. When it was put to her that she did not complain of any pain in her leg for at least two years she said the pain started to go down her leg two years later.
A further Recurrence of Disability form that she completed was in respect of another incapacity on 25 March 2003. On this occasion it was said that she was returning to work and whilst setting up play equipment pain started in her hip region. That document also noted pain in the lower back and right hip to the right leg. It was put to her that this was the first time in any of these claims that she had referred to pain in the lower back. She agreed. It was also put to her that this was the first record of any pain in the leg to which she responded that she always called it pain to her hip because when she got pain in her back it referred to her hip and groin area.
In June 2003 she had a fall at Coolbinia school in which she aggravated her low back and hip symptoms.
In June 2005 Ms Ginbey came under the care of Dr Thomas Berrigan who provided a series of reports (Exhibits 8.1 to 8.4). He performed a number of L4 root sleeve blocks which he described in a report dated 30 June 2005 as not having lasting benefit. In a report of 8 August 2005 he referred to performing facet joint injections at L4/5 and L5/S1 which gave three days of relief. In his report of 17 October 2005 he described carrying out an L4/5, L5/S1 radiofrequency facet rhizotomy without relief and in a report of 15 March 2006 that on 31 January 2006 he performed a piriformis muscle injection. She did well the following day but then had a recurrence of pain while sitting through a seminar.
Ultimately Ms Ginbey came to surgery in June 2006 for an anterior inter‑body lumbar fusion at L4/5 performed by Mr Bannon. She said in evidence that that did not help her pain save for in the groin area.

The effects of the injury

Ms Ginbey said in evidence that four years post-surgery she still has constant pain in her back especially when she sits or stands for long periods or when she has to do things around the house. If she walks around she has burning pain down the side of her leg and she has problems with her left foot.
She said that she had difficulty with having a proper functioning time with her two children. She said that after the accident her husband left her and that was possibly to do with the accident and that her relations with him had been affected by the accident.
She said that she was upset because she would not be able to work. She said that the accident had affected her mentally and she was on numerous medications.
She also said that prior to the accident she used to play netball and basketball and rode a bike which after the operation she has not been able to do due to weakness in the right leg.
She said in cross-examination that exercise was part of her programme to improve her back and spoke of walking and going to Pilates. She was asked whether in 2001/2002 she had a home gym. She said that there was a treadmill. She was asked if during the early part of 2002 she ran outdoors; she said she walked. She was asked if she went dancing; she said she did not.

The questioning then turned to meeting a David Stevens at the Elephant and Wheelbarrow on New Year's Eve 2001. She first denied knowing Mr Stevens but when asked whether she lived with him for six months she said "No, he's – he tried to go out with me". She denied that she danced with him on the occasion they met or that they had struck up a relationship.
It was put to her again that Mr Stevens was living with her. She said that he stayed at her house to help finish the house to put it on the market.
Her daughter Melanie stayed at Mr Stevens' house at Mullaloo.
It was put to her that she went running with Mr Stevens. She said:
"I never went running with David … David is a filthy person because David – I don't know where you found him, but he tried to report me that I sexually – because I wouldn't have a relationship with David, David reported me to PM – Prince (sic) Margaret Hospital that I molested my children. He – he wanted a share of my house."
In cross-examination she said her pain prevented her from having sexual intercourse. She denied that she was in a sexual relationship with Mr Stevens in February or March 2002 or at that time with anybody else. In response to that answer she was asked why she had a pregnancy test at Dr Shulman's surgery on 26 March 2002. Her answer and the examination continued:
"… Maybe because I didn't have my period.
Well, if you weren't having sex with anyone, why would you have a pregnancy test? – Well, I didn't have sex with David.
Sorry? – I didn't have sex with David.
So it may have been someone else? – At that time. Maybe somebody else.
All right. So to the extent that you say your sexual activity was restricted, you were still from the time of the accident up until ‑ ‑ ‑? – My sexual relationship – my sexual activities have been restricted more as down – further down the track.
So it wasn't in the first year or so? – Possibly not.
Well, I need to ask you because it is a large component of your claim because you had another pregnancy test in October 2001 which was positive? – October 01 which was positive? Yeah, maybe. Was it? I can't remember.
You went to the – referred to the Rivervale Women's Clinic? – Yeah, possibly.
So you were at least able to engage in sexual relations from the time of the accident up until the March of 2002? – Yeah.
Yes? – I might have – yeah, I might have had a relationship then with somebody, but I can't remember.
All right? – I might have had sex with somebody then, but I can't remember."
Paul Martin Breen is Ms Ginbey's partner. He came to know her in about September or October 2007. He said that he became aware that Ms Ginbey had medical problems and he could tell by the look on her face and her actions that she was in pain.
He said that she would attempt to do household chores but he would help her, as he put it, sometimes as a gentleman but other times because she could not do this. He said she could not lift heavy items, bend forward or do Hoovering. He would help her out of her car seat. He would also help her to make the bed and generally tidy up about the house and ferry the children around.
He said that after her surgery in 2006 she was laid up for quite a while and flat on her back for two weeks and the amount of help that he gave her increased. He said that he dressed her, moved her around and she was an invalid for a while, probably two to three weeks.
Under cross-examination he accepted that her condition improved since the surgery but he still assists her around the house. She cannot do all of the shopping. He also helps with the vacuuming and making the bed.
He had not seen a DVD surveillance of Ms Ginbey, which surveillance I will come to. He said he did not know she could squat and he had not watched her being down on all fours.
Kulwant Kaur Withers who lived across the road from the plaintiff for a while and has known her for 20 years said that in March 2001 she had had heard that the plaintiff was suffering back problems and she went to help her. She said that Ms Ginbey never got out of bed, the house was in a mess, she was not doing anything and it was not normal for her. She said that she helped with the bed making, sweeping, cleaning, washing and caring for the children. She said that this had continued since 2001 and that she now visits Ms Ginbey in her unit to help and where she stays overnight. She said that she slept with Ms Ginbey and shared the bed with her.
Under cross-examination she said that she was aware of when Ms Ginbey hurt herself because she had been told about it the day that she fell. She was asked for how long it was that Ms Ginbey could not get out of bed and she said a long time. It was put to her that Ms Ginbey had gone to work and she replied she had not; she was on sick leave and she took a lot of sick leave. Even when it was put to her that Ms Ginbey was going to work and therefore had to be getting out of bed and so she could not be in bed when Ms Withers saw her, she still responded that she was in bed. By way of clarification she said that this was when Ms Ginbey had fallen in 2001.
She said the children helped Ms Ginbey by cleaning up and vacuuming and she cooked. When it was put to her that Ms Ginbey could cook she said "When she is out of bed".
Ms Ginbey's daughter Tessa Esparon also gave evidence that after her mother's accident Ms Esparon moved in as her mother could not do a lot. She described her as struggling and so Ms Esperon did the domestic chores and ran the children to school. She did cooking and housework. She said that she moved home and then visited every couple of days to assist her mother. She also said that the children came to live with her because her mother was not managing.
Ms Esparon is a nurse and she said that she could see her mother grimacing in pain.
She said that she still helps her mother quite a lot around the house and also helps with the shopping if her mother is having a bad day.
Under cross-examination she said that she started helping her mother immediately after her fall. She said that for the first two weeks her mother was definitely off work. It was put to her that according to the records her mother did not take time off until 12 March. She said that after 1 March she moved in and her mother took two weeks off. She was at home with her.
When she was taken to the record of absences taken by Ms Ginbey (the Schedule – Exhibit 21) and it was pointed out that there was no two‑week period other than vacation, she said that she must have been confused.
She said that after her mother's surgery in June 2006 she looked after her again and attended to her and showered her at her home and did the housework and also assisted her after she had to have a scar revision following the spinal fusion operation.
She agreed that it was the case that her mother had been working full‑time but she was struggling with her back and she could not move when she got home. She did not agree that her mother had been socialising in 2001 and 2002.
She said her mother was walking but she had never seen her mother use a treadmill at the house and never witnessed her doing vigorous exercise.
David Charles Stephen was called by the defence. He said that he met Ms Ginbey on New Year's Eve 2001 at the Elephant and Wheelbarrow pub. He said that they talked and danced that night.
He said that two or three weeks later he again saw her. He said that Ms Ginbey had invited him to her house at Ballajura for a drink. They seemed to hit it off and they went out a couple of times.
Mr Stephen said he then stayed at Ms Ginbey's house and described their relationship as a couple with a sexual relationship. When it was put to him in cross‑examination that he did not live with her he said that he did. It was suggested to him that he had asked her to go out and she had refused and again he disagreed. He said that it was she who suggested that her daughter Melanie move in with his daughter at Mullaloo, which she did.
He described Ms Ginbey as an active person who kept herself very fit. He saw her using an exercise machine at home and said she did sit ups, leg raises, walked and ran. He said that he himself had run with her and under cross‑examination said that she ran at a lower level than him and that when he met her her fitness was down from the accident and she was recovering.
He said that she told him that she had had an injury to her back working at a storage company in Canning Vale when some boxes fell on her. When asked if she had had an accident at the school he said he knew nothing of this.
He said they would go out together in a group and she loved going dancing on the weekends.
He said they lived together for a few months up till August 2002 and in that time she did the housework and cooking and he helped her with the dishes.
He was asked whether or not he recalled her going for physiotherapy for her back and he said that was not his recollection.
He said that he got materials to do jobs around the house. He wanted the relationship to work and he tried to make it work. It was put to him that when the contact between them finished he tried to get paid for his work. He said that he had got people in to do work. Ms Ginbey wanted to put the property on the market and when she sold he wanted to get his money back. He said that things went sour and he took out a caveat on the property. He denied that he put the caveat on the property and that he also went to Princess Margaret Hospital to make a report about her children out of spite. He said he was not motivated to do her damage and he was subpoenaed to attend to give evidence in this case. He denied that his aim was to sabotage her claim.

The DVD and Ms Ginbey's mobility

The defence produced a DVD of surveillance of the plaintiff on 19 July 2007 in a shopping centre at Innaloo. Ms Ginbey agreed that it was her that was seen in the DVD, that it was taken on that date and that it was taken over a period of about three hours. Her children were with her.
The DVD shows Ms Ginbey walking into the shopping centre and entering a shoe shop. She then leaves the shoe shop and on both occasions she is seen walking freely.
She is then seen in a department store in which she lifts a large box into a trolley and pushes the trolley around the store. She is then seen standing at a checkout or lay-by area for some time.
At one stage her son starts to push the trolley. Nevertheless she is still seen to walk freely around the shoe department and then looking at books at a stand for some time. During no period during the DVD up to this point, that is from 9.25 until 10.07, does she hold or rub her back, hip or leg or show any other sign of discomfort.
At 10.12 she leaves the area of the books and at 10.41 is seen bending down reaching into a shelf at ground level in an area which appears to be for tableware. She is seen kneeling on the ground checking drinking glasses in a box. She then rises from the ground without any apparent difficulty or without holding onto anything for support.
Between 10.45 and 10.49 she is again seen at a checkout standing waiting.
At 10.50 she is seen outside a jeweller's store, Proud's, where she leans on her trolley but whilst holding the trolley is seen to be twisting and looking around at articles. She then leaves the area at about 10.53 seemingly walking freely towards Woolworths.
The video then shows further general shopping but not showing much other than her standing and shopping.
At 11.29 she is at a carpark and again moving freely. She appears to enter the car without difficulty.
At 11.55 she is in the shops again. On this occasion she is trying on shoes. She crosses her left leg over the right leg to put a sock on. She is bending from the seated position.
At 12.00 pm she leaves the store and at 12.05 enters what may be another shoe store.
At 12.15 she is seen walking freely towards Myer, and at 12.18 in a cosmetics department.
Ms Ginbey commenced giving her evidence at 11.15 am on 19 April 2010. She sat in the witness box where I observed her during the course of her evidence. I noted that at 11.50am she was still sitting without having moved to any great degree and appeared to be sitting without any obvious distress. This continued until the luncheon adjournment and recommenced at about 2.30 pm. Again I noted by 3.12 pm she was still sitting in the witness box with no apparent difficulty. At 3.23 pm she left the Court whilst Mr Peter Watson was interposed. She left the witness box and walked slowly but without apparent difficulty to the door of the Court.
Ms Ginbey resumed her evidence on 20 April 2010 at about 9.50 am. At 10.30 am I noted that she was still seated in the witness box again without any apparent discomfort and sat through the DVD being played. At 11.27 am in court I noted that she had not moved from her position in her seat in the witness box save that at 10.55 am she had slightly altered her position while sitting in the chair.
At 12.52 pm I noted that she was still sitting in the witness box without apparent difficulty and had been since 11.50 am. She had had a break between 11.43 am and 11.50 am when Dr Berrigan was interposed.
Ms Ginbey was cross-examined about what is seen in the DVD. It was put to her that it demonstrated that she can stand for significant periods. She said that she wore a back brace for support. She said that she wore it when seated and walking and still wears it now.
When it was put to her that she was down on her hands and knees, she said that was the best way to bend, down on her haunches, and that it was "part of my programme". She said she can do this for short periods.
As to trying on shoes and sitting and crossing her legs she said that she was able to bring one leg up and it was again part of her exercise. She said she did not have a problem with the left leg. It was also noted that she was trying on high heels. She said she tried them but she does not wear them.
It was put to her that at the time of the video she could stand for a couple of hours. She said that it seems like it but she was not under any pressure or working. She said that she was leaning on a trolley and she did sit down from time to time.
Ms Ginbey had been seen by Dr Silbert, a consultant occupational physician in August 2007. In his report of 28 August 2007 he reported her standing tolerance as being 10 minutes. She was asked if she had told Dr Silbert this and she said "sometimes I can stand for that long and at times I can – I am – on that day I did stand longer" and agreed that the DVD showed her standing for longer. She was asked why she had not told Dr Silbert that and she said:
"Because I – most of the time that's how long I can stand and most of the time that's how long I can sit."
She was also asked about her walking tolerance of 30 minutes which she had told Dr Silbert and it was put to her that she could walk longer. She said that she walked with pain.
Her reported sitting tolerance to Dr Silbert was 45 minutes. When asked about that she said "even if I'm sitting for 10 minutes I'm in pain".
When it was put to her that she had been shopping at Innaloo for three hours she said that she was not shopping for food; she went there on the spur of the moment to lay-by things for the children for Christmas.
She was also taken to a consultation that she had had with Dr Victor Cheng, a psychiatrist, on 24 April 2007. The history of her daily routine contained in his report dated 26 April 2007 at pp 6 and 7 was put to her and it was suggested to her that the picture that she painted to Dr Cheng was one of a severely disabled person when she is not. She said every day was different for her. When it was put to her that she had said that her pain was the same she said her pain was the same but her psychological "thing" was different some days.
Page 9 of the report contained a history that she could not go to the park with her children. When asked why not she said that they want to play, they want to kick a ball. The park is a five minutes' walk away. When asked why she could not walk to the park with her children she said because she could not stand for long on the grass or sit on the grass; there were no benches to sit on. She said that she had walked with them but not as often as she should.
In a report from her general practitioner Dr Graeme Hammond dated 19 November 2007 it is said that "she has constant pain, her sleep is disturbed, she is unable to work, she cannot do her normal household duties, her sexual function has suffered, she is uncomfortable in her intimate relationship, she is unable to walk with her children, holding hands and walking causes a dragging pain in her back". It was put to her that she had been seen walking in the DVD and she was asked why she could not walk for five minutes with the children. She said that on that day she took them shopping it was a fight for them to get her out. She agreed that when she did go out she was able to shop for three hours. When it was suggested to her they were not the actions of a person who was severely depressed and disinterested in appearance, she said "Well that's how you see it" and went on to say she was on a lot of medication at the time and wearing her brace and made a special effort that day.
Mr Peter Bannan the plaintiff's neurosurgeon gave evidence de bene esse on 17 June 2009 which was essentially limited to the production of his reports (Exhibit 2) with no cross-examination. His reports reveal that he first saw Ms Ginbey on 24 September 2004 with a complaint that she had slipped and fallen on a wet floor in 2001 with approximately three years of ongoing right L4 and L5 pain. Her MRI scan dated June 2003 confirmed a ruptured disc at L4/5 with a sequestered fragment travelling superiorly.
On 13 October 2004 he noted her up-to-date MRI showed that her significant disc protrusion at L4/5 had largely regressed. However, she was still having significant ongoing discitis.
On 6 April 2005 he reported that a discography showed that the three lower lumbar discs were degenerate. There was marked inflammatory changes at L4/5 and early facet joint degeneration. He referred her to Dr Andrew Miles for a second opinion who, in a report dated 15 April 2005, opined that Ms Ginbey had a right L4 radicula pain subsequent to her initial injury in 2000 (sic 2001). He noted that she continued to have neuropathic symptoms suggestive of right L4 radiculopathy, but the most recent MRI scan showed that the previously identified disc fragment had been reabsorbed. He was of the view that her ongoing symptoms were likely due to the intrinsic injury to the L4 nerve root which would not then be helped by any type of surgery. After receiving that report Mr Bannan reported again on 13 May 2005 that Dr Miles essentially agreed with him and the residual leg symptoms were probably related to nerve injury from compression.
By 28 March 2006 Mr Bannan noted worsening back pain, referred right leg pain and pain in the right groin and pelvic area. He noted that on questioning Ms Ginbey denied any significant back or right leg problems prior to the accident on 1 March 2001 and that her symptoms were due to active degeneration in the L4/5 disc with irritation of the right L4 nerve root. There being no history to suggest lower back injury it appeared in percentage terms that the vast majority of her symptoms were related to her work accident and where it had been demonstrated that she had ruptured the L4/5 disc leading to compression of the right L4 nerve root.
He opined that the leg pain that she was then suffering may well be neuropathic due to damage to the L5 nerve root.
Mr Bannan carried out surgery in late June 2006 for an inter‑body lumbar fusion at L4/5. He noted on 22 August 2006 that the fusion wound had healed nicely. However, by 1 September 2006 there was a problem with a suture that was irritating and surgery was performed to remove the stitch.
By 2 February 2007 Mr Bannan noted that Ms Ginbey was complaining of ongoing back pain and residual right leg pain related to the previous damage to the right L4 nerve root. He also noted that she had an up-to-date discogram which showed that she had painful degeneration of discs at L3/4 and L5/S1. He said:
"She has made a recovery from the incident on 1 March 2001. She had successful surgery. She has a solid fusion at L4/5. Some of her right leg pain, however, may be due to damage of the right L4 nerve root, which has previously been damaged by the documented disc protrusion."

He opined that because of her ongoing pain she needed to decide whether or not to continue with her current conservative treatment. Further surgery would be a major undertaking involving a fusion at L3/4 and L5/S1 – above and below the previous surgery.
Mr Bannan went on to say:
"Her ongoing symptoms of incapacity relate to adjacent segment degeneration. The incident in March 01 is no longer causing her symptoms. Her ongoing pain relates to torn, degenerative discs at L3/4 and L5/S1, and hence her ongoing pain is not related to her work accident. It is due to adjacent level symptoms. The surgery for her work related accident has been successful.
She does have evidence of adjacent segment degeneration at L3/4, L4/5. Further surgery will be quite difficult. It would involve extending her fusion to L3/4 and L5/S1. She does have associated lumbar spinal osteoporosis. The cost of further treatment should be borne by her health insurance. It is not related to her worker's compensation injuries. It is related to a degenerative adjacent segment disease. Therefore from a practical point of view, her case can be closed. She does have residual right leg pain from damage to the right L4 root, but her back pain is related to degenerative disease of the adjacent disc and not related to the work accident."
Following examination on 2 July 2003 Mr Watson, neurosurgeon, reported that he found Ms Ginbey was able to forward flex to touch mid shin. Straight leg raising was not impaired and neurologically he could not find any evidence of wasting or weakness in the L4 root distribution. He viewed the CT scan which was done prior to the MRI. He said that it showed a small sequestered fragment behind the L4 vertebral body, although not causing any impressive thecal compression. The MRI showed a disc protrusion directly superiorly that tucked itself into the perivertebral position and he thought not causing any L4 root infringement. He did not suggest surgery at that time.
In his report of 22 June 2009 he reviewed his previous findings and history and went on to note that Ms Ginbey continued to complain of lower back pain and intermittent right leg symptoms. He noted that a fusion had occurred and that Ms Ginbey had not responded to surgical treatment and had ongoing low back pain and right leg pain and following the procedure also some left leg pain. He also noted significant abdominal pains post-surgery requiring plastic surgical procedure in relation to her abdominal wound.
Again he noted she was able to flex to touch below the knees but appeared to have a weakness in the right leg but not supported by any wasting. With encouragement she was able to lift the right leg and to extend the knee and her knee reflexes were intact bilaterally as were ankle reflexes.
At the time of that report he was of the view that her ongoing symptoms of low back pain and referred pain to the right leg significantly curtailed her ability to work and her usual recreation. His diagnosis was right‑sided L4/5 disc herniation of moderate severity. He was of the view then that her ongoing symptomatology was accident related and she was unfit for work. Her future work capacity appeared to be bleak.
On giving evidence Mr Watson said that the sequestered fragment from the disc herniation was well and truly extruded from its correct position but was not significantly compressing the nerve root.
Mr Watson was cross-examined and said that his impression was that she had had symptoms for the whole time which were constant low back and leg pain. He was taken to the report of Dr Shulman of 29 August 2007 and asked whether or not the consultation on 9 March 2001 would cause questions as to whether or not she was likely to have injured her back. He thought not because the full effects of an injury might not come for weeks or months and progress from the back to the leg. He was advised that according to that report from Dr Shulman she was seen on 3 April 2001 and then not again until 8 November 2001 and he was asked about that delay. He said that that is a delay in the onset of symptoms.
He was also asked whether or not the pain in the right hip which is referred to could be related to what he had seen in July 2003. He thought they were two entirely different things.
He was also asked about her injury on 12 March 2001 and whether he could say which of the two incidents caused her problems in 2003 when he saw her and he said that he could not.
He confirmed that the opinions that he gave in his report were based on what he had been told by Ms Ginbey and also based on her appearance and the fact that she had had surgery.
At the time of giving his evidence he had not seen the DVD of the surveillance in July 2007. He was shown that DVD in court.
Where Ms Ginbey is seen in the DVD to be down on the floor crawling around and kneeling it was suggested to Mr Watson that she had a fairly good range of movement. He said that he was surprised to see her kneeling, but his notes revealed that two years later when he saw her she could flex to touch below her knees.
It was suggested to him that the DVD was a year post-surgery and she appeared to be able to move very well. Mr Watson said that she had a range of movements that he would not have expected her to have.
Mr Watson was also asked, if the 1 March 2001 incident was as he understood it to be, whether he would expect her to have been able to run on a regular basis for 8 kms and dance for three to five hours in the year following the injury, that is, January 2002 to July 2002. He said not really and that was not what he understood the position to be. He agreed that he would be surprised if she was able to do her household chores, jogging, work out on an exercise bike in the first six months of 2002.
In re-examination he agreed that pain relief medication could impact upon the way in which people present.
Dr John Ker, a consultant physician in rehabilitation medicine, reported on 14 July 2008 and noted that Ms Ginbey's children undertook a number of tasks for her and that she found her sitting and standing tolerances limited by both back pain and right buttock pain. She also reported a continuing feeling of heaviness in her right leg.
He also noted that, whilst not wearing one on the day of the consultation, he understood that she makes use of a corset from time to time for support.
In his report of 13 July 2009 his diagnosis was disc injury with subsequent disc sequestration at the L4/5 level resulting in right‑sided L5 radiculopathy. He thought that the injuries were severe, ultimately leading to her spinal fusion with residual radicula symptoms. He was of the opinion that she had no current or likely future work capacity.
In his report of 25 March 2010 he noted that she experienced substantive fatigue and spent significant periods of the day resting. Her outdoor activity was limited to gardening, watering. She did not walk for exercise. She said she felt socially isolated and such feelings of isolation impacted upon her mood.
She reported back pain with radiation of pain towards the right of the midline extending into the region of the right buttock. She also experienced left buttock pain from time to time and pain radiating into the right leg with paresthesia bilaterally below the knee.
In that report his diagnosis and his opinion as to her current and future working capacity was essentially the same. His prognosis was that Ms Ginbey continued to present with residual signs of L5 radiculopathy following the spinal fusion. He thought that her restrictions would persist.
He said that the extruded disc has the capacity to migrate upwards or downwards in the epidural space inside the spinal canal. With that movement it can contact spinal canal contents such as nerve roots either above the level of the disc or below and so the possibility of finding nerve root symptoms at a level other than the original site of the disc extrusion exists.
He was asked in evidence-in-chief about the DVD and in particular about that part where Ms Ginbey was observed to kneel down and stretch into the lower shelf. He noted that the DVD was a year before he first saw Ms Ginbey. He thought that there was not a great deal of difference in the range of movements between what he saw in the DVD and what he saw in his rooms. However he thought the movements in the DVD appeared to be accomplished a little more freely than in the formal setting.
In giving evidence he was asked about Ms Ginbey's use of a corset. He said that the corset would be firm but flexible and would support the lower back and musculature. He was asked what effect the wearing of a corset had while undertaking those movements. He said that corsets are designed to provide support to musculature not to improve mobility so a corset would tend to constrain someone rather than give them more freedom in the movements of their back.
He was asked whether the corset has an impact upon the perception of pain in performing certain movements. He said that it improves the function of the back with the result that one might be able to stand more comfortably or sit more comfortably but it does not affect the pain perception per se, however analgesics would reduce the intrusiveness of pain.
It was suggested to Dr Ker that the DVD would indicate that Ms Ginbey can perform a fair amount of shopping and that she did not look distressed and he agreed that she did not look distressed and thought she fully utilised her time on the shopping trip.
In his report he noted that Ms Ginbey's sitting and standing tolerances were limited by both back pain and right buttock pain. Standing was limited to 10 to 15 minutes, sitting for more than 20 ‑ 25 minutes, particularly driving a motor vehicle, was difficult for her. Dr Ker also said that at one stage during the consultation Ms Ginbey rose from the sitting position to stretch after about 20 or 25 minutes.
He agreed that on the DVD Ms Ginbey appeared to be standing throughout the majority of the three‑hour period. He was a little surprised and thought it was at variance with what he had been told.
He was asked whether squatting as she did and getting down on all fours was compatible with low back pain. He said that some people with low back pain can get down to a squatting position with difficulty but they find it difficult to sustain and they have real difficulty getting up again. He agreed that Ms Ginbey showed sufficient flexibility in getting down to the floor and he was surprised by that particular activity.
It was also noted in his report that he could not find any evidence of weakness or muscle wasting in the muscle groups of the lower limbs which would be indicative of some motor nerves weakness and wasting comes from not using muscles. However, he said that he did not compare the right and left side. However he did not see any differences that he recorded.
He was asked about ability to do household chores. He thought that she would have some difficulty maintaining some of the more physically demanding aspects of household cleaning, but he agreed that the restrictions that he had been told about were at variance with those in the DVD of July 2007.
Finally in re-examination in relation to the DVD he was asked whether there was any need for him to change his reports. He said that the DVD surveillance was a year before he first saw Ms Ginbey. He noted that she had back pain and leg pain and other problems including depression. He said:
"I have not seen evidence that since the time of my first consultation this lady's functioning in the community is the same as what was recorded on surveillance in 2007. Now if – if somebody has surveillance of a more contemporary nature, demonstrating that this is – is – that this sort of behaviour is still observed, then yes I do have to reconsider the opinions that I have tendered."
Dr Graeme Hammond is Ms Ginbey's general practitioner and in evidence said that he first saw Ms Ginbey about 2004. In his report of 7 July 2009 he said that there was no change in her diagnosis but that the severity of her back pain had increased due to time and uncertainty about her future. He thought her main problem was the neuropathic pain from damage to the nerves which was deteriorating. He thought her worry and concerns about her pain amplified it. She was uncertain about her future.
Under cross-examination he was taken to his report of 19 November 2007 and the history set out in par 5. He agreed that his comments result from what he was told by Ms Ginbey and that he was entirely dependent upon her. Further, the report noted that there was no record of her having a back injury prior to March 2001 and again that was based upon what he had been told by her.
He confirmed what appears in his report of 18 April 2008 that she told him that she could not sit for more than 10 minutes and could only stand for about 10 minutes and had a severe disability.
He was asked whether he would expect her to be able to bend, squat and get down on all fours. He said that she would be able to do it, but it would depend on the degree of pain and discomfort that she would have. In his third report of 7 July 2009 he noted that she had a very stiff and inflexible spine with pain on minimal movement. He was asked whether that had been ongoing for the whole time he had known her. He said it fluctuated with time, but she had problems with her spine and some days she may be able to do more than others.
Due to computerisation in the practice there was no documentary evidence that he had in fact examined her from time to time.
Dr Hammond was shown part of the DVD. Counsel noted that Dr Hammond had seen Ms Ginbey two weeks before this video, namely 4 July 2007, and the report of 19 November 2007 noted "innumerable problems". Dr Hammond agreed that there was a discrepancy between what is written in his report and what is shown on the DVD but added that pain fluctuates.
He was taken to the part of the DVD where Ms Ginbey was kneeling on the ground and counsel put the proposition:
"The getting up off the floor was done smoothly, with no jerking hesitations you would expect if somebody had a bad back, I suggest. If somebody has got a bad back one of the problems is getting from one position to another. Is that correct? – True.
… And the way she got up was free and smooth. She didn't put her hand on her knee to help her. She didn't do any of those sorts of things? – Not according to the video.
… Well, that's her. It's a different presentation, isn't it, to what she told you? – I would have to say yes."
The following exchange also occurred:
"She told you she couldn't walk with her children. This video and you have only seen the first hour and a half, goes for three hours and she is seen at the shopping centre the whole time. So it is a different presentation to that she's given to you, isn't it? – It certainly looks like that.
And recently she's been saying to you that she can't sit for more than 10 minutes? – Yes.
And if we could show that she could sit for an hour and a half, that would be a different presentation? – Yes.
Because she sat for at least an hour and a half in court without getting up or anything of that nature. So, again, that's a different presentation from what she has told you? – Yes."
Dr Joel Silbert produced three reports (Exhibits 10 and 39.1 and 39.2). In his first report of 28 August 2007 he recorded the history of Ms Ginbey recalling instantaneous onset of severe low back pain at a severity of 8/10 after falling. He recorded her current symptoms as ongoing low back pain and never being pain‑free and continuous aching low back pain at a severity of 5/10 and rising to a maximum severity of 8/10 with pain radiating into her right buttock, right groin to her foot or toes. She described also a burning sensation in her low buttocks and an uncomfortable feeling radiating through her right leg. She described an aggravation of symptoms with any prolonged or repetitive back movements, a standing tolerance of 10 minutes, walking tolerance of 30 minutes and sitting tolerance of approximately 45 minutes. She reported an aggravation of symptoms when undertaking activities such as driving, vacuuming, sweeping or mopping and a limitation of recreational pursuits. She only undertook a small amount of shopping at the local IGA across the road from her residence.
On examination he noted that she was not in distress and moved freely and fluidly with no obvious deformity of gait disturbance. She had a restricted range of forward flexion to approximately 75 per cent of normal. There was discomfort in the lumbosacral spine, right buttock and right leg and also with a restricted range of left lateral flexion and right rotation of the trunk. Straight leg raising was measured at 90 degrees bilaterally on passive movement with right leg straight leg raise limited to 30 degrees. In evidence he said that the significance of this was that it could be due to referred pain in the leg or due to weakness about the hip or a number of other factors including manifestation of pain or a person's willingness or otherwise to undertake the activity.
When asked to test her abilities as to various aspects of movement Dr Silbert did so by way of an informal assessment. He noted that she was able to arise from the seated position and ambulate without assistance, negotiate a chair and examination couch and as well as flex and squat to remove and apply her footwear. She was also able to negotiate an examination couch in the supine position as well as seated and undertake prolonged periods of sitting without incident being approximately 50 minutes. In his opinion Ms Ginbey was able to stand for an extended period of time.
Dr Silbert's final report was one in which he was asked to comment upon the DVD. He expressed the opinion that the surveillance demonstrated Ms Ginbey moving freely and fluidly with no obvious deformity or gait disturbance. There was no evidence of any restriction of back movement nor avoidance of any particular activities or pursuits. There was no evidence to support the use of aids or appliances for Ms Ginbey to undertake the observed activities. Further, there was no evidence of side effects or other consequences of medication.
Having expressed that opinion Dr Silbert was of the opinion that the footage demonstrated a normal functioning back which supported that her back injury had resolved. He said the footage demonstrated Ms Ginbey undertaking a variety of activities without restriction.
Dr Silbert went on to say:
"Ms Ginbey's reporting of symptoms and observed examination findings at the consultation of 28 August 2007 cannot be relied upon to establish any direct causal, temporal, or other relationship between these factors and her reported back injury of 1 March 2001. Any reporting of symptoms and disc function of the lumbosacral spine by Ms Ginbey at the consultation on 28 August 2007 is considered just as likely to be related to matters entirely unrelated to her injury as well as any manifestation of her injury of 1 March 2001."
Finally on this aspect Dr Silbert was of the view that the surgery had been successful and the DVD surveillance demonstrated that she had achieved complete recovery of back functioning to return to a range of normal activities of day to day living. The activities observed exceeded those reported by Ms Ginbey at the consultation of 28 August 2007. In Dr Silbert's opinion she presented with a good recovery of her back function.
Under cross-examination in relation to the DVD he agreed that people may have good and bad days, but he was not able to reconcile the history provided to him by Ms Ginbey declaring restrictions with various activities and the range of movement and limitations in day to day living with the range of activities and the duration of those activities as observed on the DVD. He did not believe there would be rare exceptional days because that was not consistent with chronic discogenic lumbosacral back pain. It was not consistent with the underlying pathology. The following exchange occurred:
"So when you acknowledge there can be good days and bad days, you're only acknowledging a certain range? You're not ‑ ‑ ‑? – That is correct. Mrs Ginbey advised at the consultation of 28 August 2007 of never being pain‑free and she was provided with an analogue scale with regards to the severity of the pain; 0 being no pain and 10 being the most extreme pain ever to be experienced, and was made aware of this scale. And she reported continuous aching low back pain at a severity of 5/10, or to use another term at least moderate, and rising to a maximum severity of 8/10, which is severe towards extreme. And she reported various symptoms and ranges of movements or limitation with ranges of movements and functional capabilities and was afforded the opportunity at that time to explain or describe her symptoms and her capacity. That – those symptoms were – would be described as consistent with chronic discogenic back pain or mechanical back pain and the findings on the video surveillance footage remain completely inconsistent and – yeah, completely inconsistent with someone that would have discogenic back pathology. Symptomatic back pathology."

In any event I am not satisfied that the disability is as severe as Ms Ginbey would have it.
There was the evidence of Mr Stephens about sexual intercourse and other activities to which I have referred. In addition Ms Ginbey sat in court for long periods as I have noted with no apparent difficulty and contrary to her evidence or complaints of limited sitting tolerances. Also Dr Ker thought that with such tolerance she could do clerical duties which was contrary to the opinion he had previously expressed relying on her presentation. Dr Hammond also agreed that the presentation to him was different to that seen in court.
The most compelling piece of evidence against Ms Ginbey is the DVD. What is shown in that DVD is entirely contrary to her complaints about limitation in walking and standing and other day to day activities. The period she was under observation was extensive and she showed no signs of distress, a matter noted by some of the doctors who saw the DVD. Her attempt to explain the activities does not have the ring of truth. Her explanation for taking the trip to the shop that day with her children is too convenient. In any event she said that she was in pain but didn’t show it; she said she was wearing a brace, whereas the doctors were of the view that if she had done so it would have restricted her movement not enhanced it.
Mr Watson said Ms Ginbey had a range of movements he would not have expected. Dr Ker said it indicated that she could do shopping and did not look distressed. He was surprised at her standing as it was at variance with what he had been told and he was surprised at her flexibility getting down to the floor. Dr Hammond agreed it showed a different presentation to what she had told him. Dr Silbert described the DVD as showing a fully functioning back and he was unable to reconcile the history given to him by Ms Ginbey with what he saw. He did not believe it to be a rare or exceptional day. Dr Proud, as a psychiatrist, was cautious about the DVD but he would have liked a consensus from other medical specialists because his opinion on depression was based on pain and disability.
Having heard Ms Ginbey's evidence and having seen her in court and in the DVD, I am of the opinion that Ms Ginbey's evidence cannot be relied upon as to the extent of her disabilities both before and after her surgery. I find that she is prone to exaggeration and as noted elsewhere in these reasons, quite prepared to say anything that will enhance or advance her case.
This finding on her credibility invades the whole of her evidence both as to the happening of the accident (except to the extent that I have accepted certain evidence), her progression and her losses, both before and after surgery.
That being the case I am unable to make any finding as to the present extent of her disability save that, whatever her present disability is arising from the accident, it is limited to some pain in the leg.

Damages

Non-economic loss

Given the limitations that I have expressed on the ability to properly assess Ms Ginbey's losses, I find that Ms Ginbey suffered initially mild injuries to her back when she fell. This progressed over the ensuing years at a rate I cannot determine until she came to surgery in June 2006, a period of 5 years 3 months. She underwent the surgery and by February 2007 had recovered from her injury. It appears that she had some further surgery for scar revision.
Doing the best that I can I would assess damages under this head at $50,000.

Economic losses

Ms Ginbey has claimed past and future loss of earning capacity and allied to that loss of superannuation benefits. Calculations as to this are complicated by the fact that she also received workers' compensation weekly payments and it is necessary to have regard to a Fox v Wood component (Fox v Wood (1981) 148 CLR 438).
Ms Ginbey in her schedule of damages claims such damages from 2001 to the present time by way of past losses to represent the shortfall after receipt of weekly payments and superannuation. In view of my finding that by February 2007 she had recovered from her injury and surgery her loss would be limited (at best) to this period. But for any pain that is not caused by the accident (and I have expressed my doubts about the level of that) I find that having recovered from her injury she would have been fit for work from that time. Further, given my findings there could be no allowance for future losses under these heads.
It is impossible to assess the past losses up to the date when she recovered i.e. February 2007 without some breakdown of the figures supplied in Ms Ginbey's schedule of damages and the weekly payments received.
The same problems visit the claims for past travelling expenses and past treatment expenses. There can be no assessment for the future in view of my findings.
All that then remains is the claim for past gratuitous services (there can be no claim for the future). A rate of $15.00 per hour has been agreed for such services as have been proved.
As I have noted I do not accept the evidence of those purporting to have provided services to Ms Ginbey. The evidence is either wrong or false in many respects and exaggerated. I have no doubt that as Ms Ginbey's condition progressed to the point that she required surgery she may well have been in need of assistance but it is impossible to assess, with any precision, the quantity and nature of that need. I can also readily accept that she may have required assistance for a period of time after her surgery in June 2006. I do not accept that it was to the extent alleged by Ms Ginbey, Ms Withers, Ms Esparon and Mr Breen. Doing the best I can I would arrive at a global figure of $1,500 arrived at by allowing three hours per day for four weeks and rounding it up. Interest would amount to approximately $300.00 using a rate of 6 per cent for four years. The total is $1,800.00.

Conclusions

Ms Ginbey's claim should be dismissed.